Change in circumstances from last child support modification; appellate counsel fees & § 46b-62: Czunas v. Mancini, 226 Conn. App. 256 (2024)

Change in circumstances from last child support modification; appellate counsel fees & § 46b-62: Czunas v. Mancini, 226 Conn. App. 256 (2024)

Czunas v. Mancini, 226 Conn. App. 256 (2024) (change in circumstances from last child support modification; appellate counsel fees & § 46b-62)

 

Officially released June 18, 2024

 

In Short: (1) You only get one bite at the apple for modification on one particular change in circumstances; where Husband stipulated to a new child support award after securing a shared parenting plan, he could not later use that same change as a basis for a substantial change in circumstances for another modification of child support; (2) § 46b-62 awards of counsel fees may including appellate fees and are subject to the abuse of discretion standard of review.

 

The parties were divorced by separation agreement in 2013.  Wife had primary residence of the minor child and Husband had parenting time during the week and every other weekend.

 

In 2016 the parties entered a stipulation expanding Husband’s parenting time to every Tuesday/Wednesday night and alternating weekends from Friday to Sunday.  In 2017 Husband filed a motion to modify child support based on the financial circumstances of the parties and the shared parenting plan of the parties.  The parties entered a stipulation modifying Husband’s child support obligation to $200/week in compliance with the guidelines.

 

In 2019 Husband filed a motion to modify custody and parenting again, seeking to extend his weekends to include Sunday overnight access.  The parties executed another stipulation extending (temporarily, although it remained in place per the trial court’s most recent orders) Husband’s weekends to include the overnight Sunday access.

 

In 2022 Husband filed another motion to modify child support, based on alleged changes in financial circumstances and the shared parenting plan.  The trial court, Judge Abery-Wetstone, held a hearing, at which Husband acknowledged he had no financial evidence, only the shared parenting plan and the extension of his Sunday nights to Monday mornings.  The trial court found no substantial change in circumstances and denied the motion.

 

Husband appealed, alleging that the trial court improperly found that there had not been a substantial change in circumstances since the last modification of child support warranting modification.  Wife filed a motion for counsel fees to defend the appeal and was awarded $10,000 after a hearing to do so.  Husband amended his appeal to allege that the award of counsel fees was abuse of discretion.

 

The Appellate Court set forth the statutory criteria of C.G.S. § 46b-86 regarding modification of support orders, that the moving party bears the burden of demonstrating that a change has occurred since the last court order.  A finding of a substantial change or lack thereof is subject to the clearly erroneous standard of review.  The Appellate Court held that the trial court properly found a lack of change in circumstances because there was no change in custody since the last order other than the minimal change of one night every other week.

 

If Husband were to prevail on his change in circumstances argument over the change in the parenting plan, he needed not have stipulated to pay guideline child support after the change in the parenting plan arose, eliminating that as a basis for subsequent claim of substantial change.

 

Regarding the issue of counsel fees, the Appellate Court noted that C.G.S. § 46b-62 permits such counsel fees for an appeal if the recipient lacks ample liquid assets to cover the cost of his/her own legal expenses and the payor has such substantial liquid assets, subject to the abuse of discretion standard of review.  Here, the trial court made the finding that Husband had $160,000 in a checking account, and Wife’s liquid assets were but $500.  The Appellate Court found no abuse of discretion.

 

The Judgment was affirmed.

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